Jurisprudence like a Ragbag

Abstract

In Legal Philosophies (1997) J W Harris says (p.1)

“Jurisprudence is a ragbag. Into it are cast all kinds of general speculations about the law. What is it for? What does it achieve? Should we value it? How is it to be improved? Is it dispensable? Who makes it? Where do we find it? What is its relation to morality, to justice, to politics, to social practices, or to naked force? Should we obey it? Whom does it serve? These are the questions of which general jurisprudence is comprised. They can be ignored, but they will no go away…”

This paper examines with carefulness and clarity the make up and intricacies of the subject matter. From the senses of the use of the word ‘jurisprudence’, to a highlight of various attempted definitions by dictionaries and jurists, to appreciating the change in the use of the word in different eras, it explores the various ways by which we might arrive at the conclusion that jurisprudence is indeed a ragbag. And not only a ragbag, but that the search for an explanation of jurisprudence to end all is no better than the description of an elephant by a group of blind men.

Introduction

In order to get a good grasp of any subject, it is important to consider intensively the meaning of the concept, and to distinct it from other possibly related terms. This simple exercise is more simply performed for mechanical and scientific ideas or objects than social sciences terminologies. The latter always appear to be more porous than usual, escaping almost all (if not all) attempts to provide a comprehensive and conclusive definition for academic understanding.

A very broad and vivid example is term ‘Law’ itself, which as for centuries rattled the mind of jurists, academicians as well as philosophers on what can be ‘a definition to end all definitions’ for this term.

Unfortunately, none has been provided. Much as rather been said about what has become a description of it as ‘a command or aggregate of rules set by men as politically superior, or sovereign, to men as politically subject’,[1] ‘normative science’,[2] ‘essentially and exclusively as a social fact’,[3] ‘statement of the circumstances in which public force will be brought to bear upon through courts’,[4] etc., which are at best the sole or group perspective of the jurist(s) postulating the definition.

Jurisprudence is primarily made up of the same ingredient that constitute any social science subject. Even more critically, it has been rightly described as not just being of the same origin as others but being the origin itself, out of which others find their root. “Jurisprudence was the first of the social sciences to be born”.[5] Jurisprudence is a thread of pedagogical spectrum that draws its existence across the borders of law and as far as other normative, customary, and sociological subjects.

According to Paton,[6] modern jurisprudence trenches on the fields of the social sciences and of philosophy; it digs into the historical past and attempts to create the symmetry of a garden out of luxuriant chaos of conflicting legal systems.

Along these same lines, Mark R. MacGuigan PH.D,[7] posits that it would seem that the most fruitful approach to the teaching of jurisprudence is an “ecumenical” one. All these establishing what is in part recognised as the scope of jurisprudence, the mother of other social sciences investigating the origin and roots of the fundamental concepts of law, its component and the society at large.

Flowing from the foregoing we can identify that first, distilling the meaning and finding a definite definition for such a term as jurisprudence (if at all possible) will be rather a herculean task, given the definition of such terms as law or religion is largely unknown.

And second, that the attempts that have been made at this achievement have been subject to the notion of individual jurists and philosophers that have attempted it. Freeman identifies that each notion is governed by the jurist’s allegiances, or those of his society, by what is commonly referred to nowadays as, his “ideology”. 

And these ideologies, as expected, are laced with particularly preferences and thus encapsulates a limited view of the holistic term ‘Jurisprudence’ or what it actually represents. Holmes, describes them as “inarticulate major premises”.[8]

Nonetheless, these notions, positions, perspectives or ideologies have continued to pour in massively since the inception of jurisprudence from different authors, thinkers, or jurists, documented in various papers, over distinct times and in different eras, exhuming rather complementary meanings in diverse places, revealing more than a single sense in which the word can be used, as well as possible misconceptions – well described as a RAGBAG.

In examining the subject of jurisprudence as a ragbag that it has been over the century till now, this author shall closely approach the ‘bag’ through a system of investigation highlighting – Senses of the word, dictionary and literary meanings, time/eras, places, related concepts, theories and misconceptions – an analogous approach to understanding the multiplicity of ideas that has behooved the subject matter.

Senses of the Word ‘Jurisprudence’

Pound[9], in his approach to Jurisprudence, analyses at least four senses in which the word can be used. This is a cry away from the two senses that can be generally acknowledged, or as stipulated by Adaramola.[10]

Pound identifies that Jurisprudence in its widest sense is the science of law.[11] But goes further to point out three other uses of the term, two of which he mentions has some warrant, and the third unjustifiable. Some of the senses in which Pound writes that the term might be used shall be considered as ‘misconceptions’ by this writer.

Adaramola[12] aligns with what can be considered as a generally perceivable conceptions when he states that one of two primary reasons for which the subject of Jurisprudence is hard to define is because the word can be used in two different but parallel senses. Thus, in its literal sense, jurisprudence may be defined simply as “knowledge of the law” or “skill in law” whereas in its technical sense, it merely denotes the restricted or specialized field of study designed for the training of undergraduates in the LL.B. degree programme and also at the post-graduate levels in the universities.

But even without considering jurisprudence as an academic field of study like Adaramola did, it might be sufficient to note that Jurisprudence can be used, first, to refer to the legal theories of a particular subject or political territory or simply as an examination of a subject;[13] such as its use in the words ‘medical jurisprudence’ or ‘theological jurisprudence.’ Second, it may be used to describe a particular branch of law; for example, ‘criminal law jurisprudence’ or ‘equity jurisprudence’. Both of these senses are different from the more technical meaning that is ascribed to jurisprudence today.

The sociological jurist[14] of the synthetic species describes it as the scientific investigation and systematic analysis, synthesis and presentation of certain abstract, general and theoretical ideas about law and legal systems, carried out with a view to discovering those ultimate truths and principles (if any) that are common to human societies, which might possibly lead to replacing and forming those principles or improving upon their functioning.

In a nut shell, the divergent senses in which the term jurisprudence can be used, having no cohesive identity can be seen as a foremost contributor to what has later been rightly described as a ‘ragbag’.

Definitions of Jurisprudence

From left to right, myriads of attempt have been given by jurists and philosophers at giving the term jurisprudence (or at least the idea of what it represents) a comfortable definition. This writer notes that like the status of ‘law’ itself, these approaches have been rather descriptive and subject to the definers’ boundaries of knowledge, profession, and experience. Notwithstanding, some of these definitions are worth considering under two primary shelters – dictionaries and jurists.

To begin with, the word jurisprudence derives from the Latin term juris prudentia, which means “the study, knowledge, or science of law.” As to its origin, the term was first recorded in 1620–30; from Late Latin jūrisprūdentia, jūris prūdentia “knowledge of the law” and used in the emperor Justinian’s law codes, published between a.d. 529 and 534.[15]

Dictionary definitions:

1. “Originally (in the 18th century), the study of the first principles of the natural law, the civil law, or the law of nations. – Also termed jurispredentia naturalis. More modernly, the study of the general or fundamental elements of a particular legal system, as opposed to its practical and concrete details. The study of legal systems in general. Judicial precedents considered collectively. In German literature, the whole of legal knowledge. A system, body, or division of law. Caselaw. – Black’s Law Dictionary.[16]
2. According to Merriam-Webster, Jurisprudence is the science or philosophy of law, a system or body of law, the course of court decisions as distinguished from legislation and doctrine, or a department of law as in medical jurisprudence.[17]
3. “The study of law and the principles on which law is based.” – Cambridge Advanced Learner’s Dictionary & Thesaurus.[18]
4. According to Collins Dictionary, “Jurisprudence is the study of law and the principles on which laws are based.”[19] Further as the science or philosophy of law, a system or body of law, or a branch of law.
5. The Oxford Advanced Learner’s Dictionary describes it as the scientific study of law, or a legal system.
6. “The philosophy of law, or the science which treats of the principles of positive law and legal relations. In the proper sense of the word, “jurisprudence” is the science of law, namely, that science which has for its function to ascertain the principles on which legal rules are based, so as not only to classify those rules in their proper order, and show the relation in which they stand to one another, but also to settle the manner in which new or doubtful cases should be brought under the appropriate rules.” – The Law Dictionary.[20]

Definitions by Legal Writers and Jurists

1. Ulpian a Roman Jurist defines jurisprudence as “the observation of things divine and human, the science of just and unjust.”
2. According to Dr M. J. Sethna, Jurisprudence is a study of fundamental legal principles including their philosophical, Historical and sociological bases and analysis of legal concepts.
3. An English Jurist Sir Thomas Erskine Holland defines, Jurisprudence as, “Jurisprudence is the formal science of positive law”.  According to him jurisprudence should only concern itself with the basic principles of concepts underlying in any natural system of law. Formal science = Rules of External human conduct enforced and controlled by a sovereign political authority.
4. John Austin was the first jurist to make jurisprudence as a science. He defines ‘jurisprudence’ as “the philosophy of positive law.” He opines that the appropriate subject to jurisprudence is a positive law (jus positivum) i.e. law as it is (existing law, written). In other words, jurisprudence is not a moral philosophy but it is a scientific and systematic study of the existing, actual and positive law has distinguished from natural, ideal or moral law.
5. According to John Chipman Gray “jurisprudence is the science of law, the statement and systematic arrangement of the rules followed by the Court and the principles involved in those rules”, meaning that jurisprudence deals with only that kind of law which consists of rules enforced by courts while administering justice.
6. According to Julius Stone[21] ‘jurisprudence is the lawyer’s extraversion i.e. lawyers interpret the law in the light of knowledge. he considers the knowledge of social, economic, political problems essential for lawyers and judges without which they cannot handle the legal problems of the society.’
7. Salmond defines Jurisprudence as, “the science of the first principles of the civil law.” According to Salmond Jurisprudence can be defined in two senses (1) in the ‘Generic Sense’ jurisprudence can be defined as Science of Civil Law’ and (2) in the ‘Specific sense’ Jurisprudence can be defined as the science of the first principle of civil law.
8. Keeton Defines jurisprudence as “the study and systematic arrangement of the general principles of law”.
9. Dean Roscoe Pound[22] defines jurisprudence as “the science of law,” using the term law in the juridical sense, as denoting the body of principles recognised or enforced by public and regular tribunals in the administration of justice.
10. According to Dr K. C. Allen, Jurisprudence is the scientific synthesis of all the essential principles of law.
11. “Jurisprudence is a particular method of study, not the law of one country, but of the general notion of law itself.” – G.W. Paton.
12. . According to Fitzgerald, “Jurisprudence is the name given to certain type of investigations into law, an investigation of an abstract, general and theoretical nature which seeks to lay bare the essential principles of law and legal systems.”
13. According to Dias and Hughes, Jurisprudence is any thought or writing about law rather than a technical exposition of a branch of law itself.
14. “It is a general theoretical discussion about law and its principles as opposed to the study of actual rules of law.” – Jolowicz.
15. According to Hall, it is seen as including the search of ultimate conceptions in terms of which all legal knowledge can be significantly expressed.
16. According to Lloyd, Jurisprudence involves the study of general theoretical questions about the nature of laws and legal systems about the relationship of law to justice and morality and about the social nature of law.
17. Dicey considers jurisprudence as a word which stinks in the nostrils of a practising barrister.
18. “Jurisprudence is the knowledge of law in its various forms and manifestations.” – Wortley.
19. According to Adaramola,[23] Jurisprudence is the amalgamation of the art, science, psychology, socio-biology and epistemology of law.
20. Lord Radcliffe in his book, ‘The Law and its compass’[24], states inter-alia that we cannot learn law by learning law if it is to be anything more than just a technique, it is to be much more than itself: a part of history, a part of economics and sociology, a part of ethics and philosophy of life.

These and more are the identifiable definitions of jurisprudence that have been postulated by jurist, only attempts in themselves, not reaching a conclusive definition to end all. The ragbag can further be considered from the identities the term jurisprudence has borne over time and across jurisdictions.

Jurisprudence in Time & Places

According to Pound,[25] the philosophical[26] method is the oldest and longest continued method of jurisprudence. It dominated the legal science of Rome from Cisero’s time, and dominated the legal science of the modern world from the seventeenth to the nineteenth century.

Modern jurisprudence began in the 18th century and was based on the first principles of natural law, civil law, and the law of nations.[27] In the early days of English law, Jurisprudence was seldom used, and when used it simply meant skills in the law. But in 1832, it achieved rather a different meaning. In his great work, “The Province of Jurisprudence Determined,”[28] John Austin, first professor of jurisprudence at University College, London (1826), described jurisprudence to be the analysis of legal system and its basic concept. This definition dominated the English law for nearly a century.

In French law, the term meant the jurisdiction of the court in interpreting the code as distinguished from statute and expert opinion of law, a concept which corresponds with caselaw in English legal tradition. The word La jurisprudence strictly refers to caselaw, and is a far cry away from the technical and modern meaning of the word jurisprudence.

Theories & Schools of Thoughts

The methods by various jurists to identify ‘the ultimate truths and principles (if any) that are common to human societies’, has culminated in the formation of a number of ideologies that can be divided into distinct schools. Although these schools, all having elements of balance and imbalance may be seen as complementary rather than combative. Majorly postulated by the writing of a jurist, most of these schools have grown to not only habituate various jurists from different territories, but have been divided into species within the same school of thoughts.[29]

Paton in his review of these theories began with Jeremy Bentham[30] a proponent of the English analytical school, which is well known to have been popularised by John Austin in his book “The Province of Jurisprudence Determined.” Although the term ‘Imperative School’ has been considered as more suitable for Austin by other jurists, given his ‘command theory of law.’

Other schools of jurisprudence that have been postulated include the Historical School by Friedrich Karl von Savigny,[31] Pure Science theory by Hans Kelsen,[32] the Functional school by Dean Pound, the Realist by Oliver Holmes,[33] etc.

Conclusion

All said and done, the nature and scope of the field of jurisprudence is so large and porous that it does not allow for a conclusive definition. Thus, the theoretical exercise to provide a definition of jurisprudence to end all definitions can be likened to the renown adventure of the blind men in their descriptive approach to define the elephant, which was rather complementary than conclusive. They were all right, but yet wrong. Jurisprudence is therefore similar to a ragbag, filled with all kinds of general speculations and hypothesis drawn from the multiple views of jurists and philosophers.

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[1] Monika. “John Austin’s Analytical Approach to Positive Law- Explanation.” iPleaders, 31 May 2019, blog.ipleaders.in/john-austins-analytical-approach-positive-law. Accessed 8 Feb. 2024.

[2] Notes, Law. “KELSEN’S PURE THEORY OF LAW.” LAW Notes, 15 May 2022, lawnotes.co/kelsens. Accessed 8 Feb. 2024.

[3] Leon Duguit of the Sociological School of Thought.

[4] Oliver Wendell Holmes (1841-1935) of the Realist Definition of Law.

[5] “Methods of Juridical Thinking” in Science of Legal Method: Select Essays, p. 289. 

[6] “A Textbook of Jurisprudence” – 4^th Ed. Oxford – At the Clarendon Press, 1972, p. 1. 

[7] In his book – Jurisprudence Readings and Cases, University of Toronto Press, p. 3.

[8] Collected Legal Papers, 203, 209.

[9] Jurisprudence, Roscoe Pound, ST. Paul Minn. West Publishing Co. 1959.

[10] Adaramola Jurisprudence, Funso Adaramola, OON. 4th ed. LexisNexis

[11] Peculiar to England, British dominions, and the United States. As study of the science of law as such (i.e. apart from political science and political philosophy) dates in England and America from Austin’s province of Jurisprudence Determined (1832), and as Austin’s methos was exclusively analytical, a narrower meaning became current in English-speaking countries. Ibid. p. 8.

[12] Ibid. p. 1.

[13] This is rather an ‘old sense’ use.

[14] Adaramola Jurisprudence, p. 2.

[15] “Dictionary.com | Meanings and Definitions of English Words.” Dictionary.com, 30 July 2021, www.dictionary.com/b. Accessed on 9 Feb. 2024.

[16] Black’s Law Dictionary (10th ed. 2014)

[17] “Jurisprudence.” Merriam-Webster.com Dictionary, Merriam-Webster, merriam-webster.com/di. Accessed 8 Feb. 2024.

[18] Jurisprudence. 7 Feb. 2024, dictionary.cambridge.org/dict. Accessed on 9 Feb. 2024.

[19] Collins, Jurisprudence, collinsdictionary.com/. Accessed on 9 Feb. 2024.

[20] Staff, Tld. “JURISPRUDENCE.” The Law Dictionary, 30 Nov. 2016, thelawdictionary.org/jurisprudence. Accessed 9 Feb. 2024.

[21] In his book, The Province and Function of Law, 1946.

[22] Ibid.

[23] Ibid.

[24] 1967, (p.878)[5]

[25] Ibid.

[26] This method consists in the study of the philosophical bases of the institutions and doctrines of the legal system and of its ideal element. It seeks to reach philosophical presuppositions of the legal system, and to understand and organize its ideal element through philosophy. Ibid. p. 18, 19.

[27] Garner 2009, Jurisprudence entry.

[28] First published in 1832, in which he sets out his theory of law generally known as the ‘command theory’

[29] All giving a wilder, more comprehensive and an infinite comprehension to the term.

[30] His treatise, The Limits of Jurisprudence Defined, written in 1782, was found by Professor Everett at the University of London.

[31] It emphasized the spirit of the people, the Volksgeist.

[32] Kelsen emphasizes on separation of law from politics, sociology, metaphysics, and all other extra-legal disciplines. He defines ‘science’ as a system of knowledge or a ‘totality of cognitions’ systematically arranged according to logical principles. – —. “KELSEN’S PURE THEORY OF LAW.” LAW Notes, 15 May 2022, lawnotes.co/kelsens-pure-theory-of-law%EF%BF%BC. Accessed 9 Feb. 2024.

[33] Contends that the law is not simply a set of abstract rules and principles but is rather defined by the decisions made by judges. LawBhoomi. “The Realist School of Jurisprudence.” LawBhoomi, 25 Jan. 2024, lawbhoomi.com/the-realist-school-of-jurisprudence. Accessed on 9 Feb. 2024.